Comments by JoeHill

Barry Cappello lied? ("In response to the conflict of interest allegations, Cappello initially denied that he or his firm had ever represented Knell, and that to the extent anyone in his office ever did, they did so without his knowledge or approval. Based on documentation provided by the real-estate department, Anderle found Cappello’s recollection to be at variance with the facts.") Simply not possible!

Foo, it's not clear which is worse, your lying about what the "average county worker" makes, or the fact that you hate workers, whether public or private sector. Why shouldn't public employees make a decent living wage? In fact, productivity in the workplace has increased in the last decades, and worker pay has not kept up with either inflation or productivity. So guess who profits from that? The lazy coupon-cutting "entrepreneur" who sits in place and does nothing. In Acapulco. Or Monte Carlo. While your buddies like Mitt speak churlishly about the "47 percent".

Foo, why is "class warfare" OK when the rich declare and wage it? That's what's been happening, to the detriment of workers and the middle class, for these 30 years of increased wage inequality, stagnant upward mobility and union membership declines in the face of increasing employer hostility and union-busting, and the weakness of labor law to enforce the American right to unionize for a better working and overall life. Why is it OK for corporations to have First Amendment rights and organize themselves in that form, and get tax and other breaks, while individuals are left to fend for themselves? There is no valid reason -- DC Circuit notwithstanding -- that a corporation's constitutional right should trump labor rights of workers. There is no reason why the News-Press' right to publish trash and unethical reporting, if it so chooses,should extend to the right of workers to get basic protection from the excesses of management.

@JohnLocke, please don't confuse "deference" with the absence of review. There is judicial oversight of administrative agency adjudications, but it is not supposed to be "de novo" and contrary to applicable law, and the record as developed by the parties, as it was in this case. It's clear from your postings that you've worked backwards from your agreement with the result, so that the process and adherence to precedent, which is supposed to restrict the "ipse dixit" approach to decisionmaking in judicial and especially labor disputes, is defenestrated. The real trouble is that this is not an academic discussion, but involves the practical justice that was denied eight deserving people who were fired, and many more who would like to see justice done at this particular workplace.

@Oblati, if McCaw had obeyed the law, none of this would have occurred. Yes, she has the right to publish what she wants, and to operate an unethical publication even as she claims otherwise. But that right to a press free from government interference in what may be published had not, until now, been permitted by any court to extend to violating others' rights to organize or to be free from employer punishment for so doing, including publicly showing disagreement with the employer's labor relations policies and practices, and protesting wrongs imposed on other employees.

From the tenor of your posts, that outcome doesn't bother you, and you're pleased that protesters may be bruised by a constitutional provision meant to be a protective shield now transformed into a cudgel to deny and punish employees unfortunate enough not to own a printing press.

There's not much point in arguing further with either of you, because JL is happy with dishonest judicial outcomes as long as they align with his predilections, and Oblati is happy with whatever Wendy wants, regardless of justice.

I don't know whether the NLRB or the Teamsters will appeal,but the point is that in this case, the three judges went beyond a fair interpretation of "law and precedent", and ignored it and the lengthy factual record. And as I noted above, and as you and the court have failed to accept, the law is that administrative agencies are supposed to develop the evidentiary record and make the primary judgments and findings based on their observation of the evidence and witnesses as they are presented at trial, subject to a "substantial evidence" test on appeal. That is supposed to actually relieve the courts of some burden, and make sure that those closest to the case, and with actual expertise in the labor relations field, make the key decisions.

There is no doubt that what McCaw and her supervisors did violated labor law; the DC Circuit felt it didn't even have to address that set of determinations. What the court did was "fix a problem" that it conjured from its own imagination and conscious misinterpretation of what occurred and how labor law works, because it wasn't based on fact or existing law (which I note you don't address). And you seem to concede that this was an "activist" ruling, since the court "fixed a [perceived] problem" INSTEAD of following the law. And it "fixed" it, after imagining it, by extending the constitution to a place it has never been: protecting violations of statutory law that remains applicable to all private sector employers, including newspapers.

And I guess it's not a "problem" for you that Wendy was granted a limited license to damage the labor relations rights of her employees; how is that to be remedied?

@JohnLocke: 1. The publisher's rights under the constitution are to publish and not publish what she wants, which does not absolve her from obeying labor law, or the remedies ordered by the NLRB, which did not include an order requiring her to (not) publish anything in her paper.2. The law of deference to the NLRB and most similar administrative agencies is enshrined in the law, and was acknowledged by the DC Circuit before it trampled on that principle.3. SCOTUS, in 1937, rejected a newspaper publisher's First Amendment argument that it should not be required to reinstate an editor it had fired. The DC Circuit followed that precedent in 1940. In 1992, the DC Circuit, including two of the panelists who signed on to the corrupt opinion two weeks ago stated that boycott activity by employees during an ongoing labor dispute is statutorily protected activity. This decision is without precedent, sort of like Bush v. Gore.4. What I may be fine with in another case --and you can believe it or not, but I recognize the difference between an honest and dishonest path to a conclusion, and this one was grossly dishonest -- has little to do with the profound injustice imposed via this utterly corrupt and anti-analytical extrafactual decision issued in this case.

And by the way, a management attorney and Republican serving on the NLRB voted with the union and the two Democratic appointees in this case. That was because he bothered to review the record and apply the law.The DC Circuit pretty much admitted that it didn't do the former, and as explained above, it didn't do the latter either.

Y'all who disagree with my analysis of the DC Circuit miss the following points:

1. The Court ignored the actual facts and evidence in the record, and actually stated that they need not opine about the individual unfair labor practices found by the NLRB.

2.In the course of #1 above, they abandoned the deference they are supposed to afford administrative agencies like the NLRB, which they acknowledge and then don't follow.That deference is how Republicans (and Democrats) are supposed to treat administrative agency decisions on review, especially when they are, as in this case, clearly supported by substantial evidence in the record.The court instead invented a new legal concept, as in Bush v.Gore, to get to the preordained result it wanted to reach.

3. They ignored their own precedent and that of SCOTUS on the issues of First Amendment protection against NLRA rules for a newspaper publisher, and on the protected nature of a boycott, which they stated was protected activity, some 20 years ago.

4. In doing 1, 2, and 3, they acted as "activist" result-oriented judges, which is not the way Republicans say their appointed judges are supposed to act. This reveals the decision for the corrupt product that it is, if 1, 2 and 3 weren't enough.

The point of the NLRB cases is not about the content of the paper, but about a court looking for a reason to help out an outlaw employer, even when its own lawyers were not up to the task of defending it. The unfair labor practicescommitted by Wendy & Company are standard labor law violations; you just don't ordinarily see so many committed by one employer in a relatively small workplace. And one of the NLRB members who agreed that the N-P had committed the multiple violations was a Republican management lawyer appointee.

The DC Circuit reached beyond the comprehensive evidentiary record and the confines of precedent from SCOTUS and its own annals to help out a miscreant employer, in unprecedented fashion. The only thing missing from McCaw's First Amendment defense was evidence: the NLRB found, relying on evidence, that the reasons for which the eight reporters were discharged were either pretexts (i.e., lies to cover up anti-union motivation) or retaliation NOT for alleged attacks on managerial prerogative, but for protected activity. McCaw's half dozen lawyers mustered not a shred of evidence to contradict that conclusion, and Steepleton admitted that all of the reasons for firing the eight were contained in the letters he wrote and gave to them. None of those letters said word one about McCaw's purported concern about threats to her editorial prerogatives. So the First Amendment was a "post hoc" defense cooked up by lawyers who didn't bother to prove it.

People sucking up to Wendy claim the NLRB is biased; all of the judges favoring Wendy thus far have had an "R" next to their names, and as noted above, one Republican NLRB member voted in favor of the employees and union. Republicans are supposed to believe in the force of precedent, but these three pretended the Supreme Court's ruling saying newspapers had to obey labor law, and the DC Circuit's precedent saying employee boycotts are protected, never happened. These judges' hostility to unions, collective bargaining and the NLRB, and willingness to bend over backwards to help employers and discard the deference they're supposed to show to NLRB rulings, have been demonstrated time and again. This decision is a travesty of justice, nothing less.

maven, All NLRB appeals may be determined in either the DC Circuit or here the unfair labor practices occurred, which in this case would be the Ninth. The N-P was able to do some "forum-shopping", and chose the DC Circuit, known for its anti-NLRB, nti-union hostility and its 2-1 ratio of R's to D's.

This case was never about private property rights; there is not one word about that in the DC Circuit case. What it was about was McCaw trying to destroy the union and banish its supporters, which is supposed to be illegal in this country, as it has been for more than 75 years; the First Amendment offers no special defense or protection for newspapers, as the Supreme Court declared in 1937. And as I note above, the DC Circuit, including two members of the panel who decided this case last week, stated in 1992 that boycott activity is protected by the same federal labor law. What this Court did was decide, for the first time ever, to unprotect activity that has long been held protected, and expand the First Amendment to turn it into a weapon by which newspapers can lash out against union supporters, rather than just use it for protection against government encroachment into what it may or may not publish.That is the very definition of judicial activism, which conservatives are not supposed to practice, but often do in the name of anti-unionism. Regardless of what the law dictates.